Why Isn’t the Constitution Pipeline Approved by Now?

waterless fracking Tom

Tom Shepstone
Natural Gas NOW


The Constitution Pipeline should have been approved long ago by New York State DEC. The fact it hasn’t happened illustrates the depth of state corruption.

The Constitution Pipeline saga represents everything that is wrong with New York and why it’s properly called the Empire State, because it’s run like one. It also speaks to the naiveté an industry that thinks playing by the rules, combined with some patience, will yield anything but frustration in such a politically corrupt environment. The Constitution Pipeline should have been approved by New York State DEC a year ago and the fact it has not been is an indictment of the empire and its crime boss emperor for engaging in nothing less than tyranny.

The history of the Constitution Pipeline application is generally laid out here. It requires permits from both the Federal Energy Regulatory Commission (FERC) as well as the New York State Department of Environmental Conservation (DEC). The application to FERC was, more or less, finalized in July, 2013 and approved on December 2, 2014. On August 22, 2013 also made application to DEC for various wetlands crossing and other permits, including a Section 401 Water Quality Certification. Wetlands permits are, as any landowner or planning board member knows, issued routinely by DEC as they are by similar agencies across the country. The rules are slightly more complicated in New York but permits are, nevertheless, constantly being issued without big complications or controversy. They’re certainly no basis for denying a pipeline – only delaying it.

Constitution Pipeline

The Section 401 Water Quality Certification is a permit that’s not so well known but is not new either. Moreover, it’s not specifically aimed at pipelines or oil and gas activity. Rather, it is designed to simply ensure whatever activity is permitted by a Federal agency also complies with state regulations on water quality. There’s nothing special about it; it’s basically an intergovernmental coordination mechanism. Because wetlands permits are required from DEC, Section 401 also comes into play with a FERC project as a way for New York State to confirm a pipeline developer has obtained those permits and any others that might be required pertaining to water quality. It also allows the state to take a look at any stream discharges involved (stormwater in this case) and confirm these meet its standards. It is largely an administrative function.

This is why Section 401 includes the following language (emphasis added):

If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.

The Constitution Pipeline request for certification has now been before the DEC a total of 28 months. That’s 2.8 times the maximum period provided under Federal law for those of you from Manhattan who live oblivious to the real world. This explains the comment of a DEC official a few months ago when he offered this:

“If we are to use that authority arbitrarily or to withhold these certifications where we should be granting them, what then can happen … is there is an opportunity for the federal government to just take that process over from us and then we no longer have that authority,” Snyder said at a roundtable discussion on climate change Monday sponsored by the state Assembly. “So that’s the position we’re in. We look at it really carefully. We have people going out in the field, every stream crossing, every wetland to make sure these are being done using the best techniques to protect our resources. But we have limited authority over that broader energy question of whether the pipeline is needed.”

If you’re thinking like me, you’re now wondering why in the name of God hasn’t Williams, the builder of the proposed pipeline, simply gone to FERC or to Federal Court to assert its rights to a waiver, given the total irresponsibility of DEC in this matter, something even the agency has largely acknowledged. Why is Williams allowing a corrupt crime boss governor to dictate delay when there’s an obvious out?

Constitution Pipeline

The answer is simple if you’ve every attended the meetings of a local planning board where statutory deadlines on taking action are routinely extended with the cooperation of applicants hoping to get approvals. Requests for additional time to review applications are often justified with complex matters and, even where they’re not justified, most applicants choose prudence in hoping some additional time will allow the board to do its work and ultimately result in approval. It happened frequently as applications are revised during the review process and the parties both want additional time. There’s also a huge risk in denying a planning board requested additional time in that the board may then simply declare it doesn’t have a complete application and, therefore cannot act, or simply deny the approval for some frivolous reason. Developers want approvals, so they’re generous with time.

There comes a point, though, with some boards where an applicant realizes it’s being played and the game is one of delay in hopes of killing the project. That is the point at which legal counsel asserts the applicant’s right to due process and a decision is forced at the threat of lawsuit. It doesn’t happen all that often, but it does happen and it’s a necessary part of the process if fairness and the rule of law is to have any value whatsoever. I’ve represented both developers and planning boards over many years and, while I’ve often been the one asking for additional time, I’ve also advised clients to assert their rights when the delay game has ensued. Some developers, though, especially those with deep pockets, are reluctant to insist on timely performance of duties, preferring to wait it out simply because they can and feel that, if it’s to be a war of attrition, they stand poised to win in the end.

Constitution Pipeline

That strategy doesn’t work in a corrupt place such as New York, where the governor has been amassing dictatorial powers for some time now, as well as feathering his own nest with political donations and using the taxpayers as a crony-capitalist piggy bank. Williams has acted in good faith till now, but it’s time to take a different tack. The company even went to the point of refiling its application with DEC on April 29, 2015 to give the agency for time to review it, saying this (emphasis added):

At the request of NYS DEC, Constitution Pipeline has withdrawn and resubmitted its 401 WQC application with no changes or modifications to allow the agency sufficient time to complete its review of potential impacts on wetlands and water quality. This is an administrative procedural action which we do not expect to delay the timing of the agency’s final determination.”

We remain optimistic that we will receive final clearances so that we can begin construction of this critical piece of pipeline infrastructure in the next few months in order to help meet growing natural gas demand in New York and New England by the second half of 2016. Once complete, the pipeline will immediately become a key piece of natural gas pipeline infrastructure in the Northeast, creating an important connection between consumers and reliable supplies of lower-cost energy.”

This was at the point DEC had already had the application for a full 20 months; some eight months longer than permitted under Federal law. Williams gave the agency (Cuomo really) a new lease on life to torment it; yet another potential year of delay in the hope its good faith would be returned in kind. That it wasn’t is hardly a surprise to anyone familiar with Cuomo politics. He only wanted more time for controversy to be fomented in hopes of pleasing his “occupy” constituency and the NRDC gang manipulating them, as well as generating some kind of pay-off, political or otherwise, for his own personal benefit. And, make no mistake about it; this decision isn’t being delayed by DEC (which took 16 months to even schedule hearings on the permit) but, rather, by the micro-managing control freak crime boss in the governor’s office.

Williams hoped for a decision quickly after playing along and has been bitterly disappointed. Worse, it’s trapped by its own capitulation to the additional time request (a twisted form of blackmail), which now gives Cuomo until the end of April to decide under Federal rules. This will wipe out the construction season and result in another full year of day to the detriment of both Upstate New Yorkers and Pennsylvanians unless Williams finally gets tough and goes back to FERC and/or Federal Court to expose this chicanery as nothing but a delay game and demand its rights. It’s way, way, way past time it did so. If nothing else, the landowners who have supported the pipeline deserve it. Stop playing Cuomo’s game.

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19 thoughts on “Why Isn’t the Constitution Pipeline Approved by Now?

  1. Tom: You are right on the money with this article. I too have wondered many times why the gas industry does not take the gloves off on both the NY empire and the environmentalists who now control the state. Doesn’t the gas industry retain lawyers? Why do they pay them for? Emperor Andy should be hauled into court and a judge should demand of him why his lackeys in the DEC haven’t granted the permit for the Constitution. It would appear as though the Rockefellers and former DEC Commissioner Joe Martens tentacles reach far into NY government. I still love the op – ed you wrote in the NY POST a while back and submit the link to here as it is more relevant today than ever –

    • According to this article the wetland permit is a mere formality with no basis in science or technology. I suppose that is the way the pipeline industry sees the permitting process – simply a foolish bureaucratic process that should be routinely approved with no objections from any landowner or government agency. To the pipeline industry the only thing that matters is making as much profit as possible without regard to the damage it may cause while doing so. My personal experience makes me fervently opposed to the Constitution pipeline. (1) Constitution has used the threat of eminent domain to browbeat landowners into accepting its unfavorable terms. Constitution offered to pay us $20.45 a linear foot for a right-of-way. Without the power of eminent domain, it paid $1000 per linear foot for an alternative route. Landowners will obviously be subsiding Constitution. (2) Constitution selected a greenfield route to save costs and hassle. It could have used a non-greenfield route along the I-88 corridor. It has never explained its reasoning for a greenfield route. (3) The route across our land would have inevitably and irreversibly damaged three wetlands. At great personal expense, we were able to marshal the scientific evidence required to get the DEC to require a re-route around our land. Probably many other landowners were unable to protect their land from this pipeline. Constitution didn’t care about our wetland, so I doubt it cares about any other wetlands along its greenfield route. (4) Talk about corruption: Constitution has been bribing local official all along the route with its “community grants”. Oil companies do the same thing with indigenous peoples in the Amazon – hand out gifts to the local leaders in exchange for permission to drill on indigenous land. (5) The EIS Constitution prepared and FERC rubber stamped uses incomplete, inaccurate data and draws false conclusions. Neither Constitution nor FERC have responded to hundreds of legitimate questions and concerns about the EIS, contrary to legal requirements. If the pipeline industry were more honest, it would admit that the use of eminent domain to force a pipeline through a region whose resident do not want it, and who will receive no benefit from it is true corruption. .

      • No benefit? Are you serious? We already know of multiple employers depending on this pipeline to provide them the natural gas they need to stay competitive and you want to pretend that doesn’t matter? Tells us everything we need to know, doesn’t it?

  2. it is time for the landowners and industry to fight this corrupt,dictatorial state. andy should have been gone a long time ago, but he is protected and handled by big money.and by the marionettes of this big money, the useful idiots i do not understand why the thinking people of ny can not see what kind of person he is? he does not hide his personality very well: it is plain to see. thanks tom for your efforts on behalf of the real people of this state.

  3. http://wnyt.com/article/stories/s3875770.shtml

    I’m sure the FERC docket as well as a wide variety of websites from grassroots antifracking groups to supposed legitimate NGO’s offer all kinds of creative conspiracy theories and arguments against this pipeline but the most creative opposer might be the thing that looks like the Monopoly guy described in the “news” article above. I’m pretty sure it is a puppet!

    Most creative real person’s argument against the project is probably a certain Kennedy’s as he didn’t just say on MSNBC that the project would only benefit some billionaires but also that the federal energy regulatory commission (FERC) might be a “rogue” agency run out of North Korea perhaps?

  4. So, you think that giving corporations like Williams, Cabot & Oil, or the CONstitution Pipeline Company, LLC or any other company has the right to steal land? Why is eminent domain being used for a project that has absolutely no benefit to the people of New York State? Our government is providing authority to a private, for-profit corporation to forcefully take citizens’ property against their will. This is not for any public benefit. This is to further line the pockets of wealthy individuals who are ravaging our environment and exploiting our natural resources. It’s hard to imagine a more un-American scenario than that taking place. I hope our state DEC deny’s the 401 Water Quality Permit because that is the right thing to do.

    • No benefit? So, you don’t think any of the employers waiting to connect to the natural gas the pipeline will bring are important?

      • You need to update your information on who is actually now waiting and for those of them that are where is the funding going to come from? The money set aside in Sidney NY where is that now going?

  5. As an affected landowner I too am waiting for a decision

    (“Williams hoped for a decision quickly after playing along and has been bitterly disappointed”)..

    seriously, a billion dollar company of carpetbaggers needs this empathy? …

    “Worse, it’s trapped by its own ( inability to provide it’s stockholders a positive return) capitulation to the additional time request (a twisted form of blackmail),”

    …so you don’t think these CP financial grants are a form of blackmail? … let me smile as an affected landowner at this statement as the land man who came to visit us found we were not going to just give our land to CP, we did not want to partner with CP, we were not signing our hard paid for land over to some corporate giant … the CP land man stated ” we’ll take this land one way or another, in fact if we want we’ll put the pipe right under your “Fin” pond”… then weeks later sent me a letter about how CP is being a good neighbor! Good neighbors don’t take your land… good neighbors don’t put a finger in your face and say the “F” word.

    …”which now gives Cuomo until the end of April to decide under Federal rules”.

    Yes, as we teach our children there are rules and that doesn’t make us as parents or Governors evil entities…

    “This will wipe out the construction season… ( and the birds and trees and air are thankful as am I but are we suppose to belly up because some corporation decided to take a profit chance and the deadlines are not meeting CP’s agenda so the people of NY are to cow tow?Because the pipes were delivered we need to feel sorry and put them in the ground?)

    “and result in another full year of day to the detriment( your sentiment Mr. Shepstone) of both ( polluting)Upstate New Yorkers and Pennsylvanians unless Williams finally gets tough ”

    …so when my new good neighbor CP verbally threatens me in my driveway with putting the “Fin” pipe under my pond… that isn’t threat enough,how about they take me, an american citizen who pays the taxes to court and takes my land by ED… that’s not evil but the Governor is?

    … “and goes back to FERC and/or Federal Court to expose this chicanery as nothing but a delay game”( not a delay game, Sometimes sir it takes science and law abiding persons time to do the right thing

    “It’s way, way, way past time …( no you contradict yourself… DEC has till April 2016… chill out and play by the rules as the affected landowners have been told.)

    ” If nothing else, the landowners who have supported the pipeline deserve it.”( and they deserve what? Can you at least make a point here in this essay? Deserve what? Gas going to another country, ruined environment…spell out what these landowners are seeking.Even the company in Sidney that CP counted on to be there for them has sold out to propane… and these landowners do they think that at 1 million dollars a mile a small town in upstate NY is going to fund lines to supply their town with natural gas?

    ” Stop playing Cuomo’s game”.

    This is not a game Mr. Shepstone, be ashamed by ending your poorly written essay with such a child like statement. You Mr. Shepstone instead should be proud of your sir name which infers homestead,sheep farm and villages….all which will be in disarray if the water quality permit is granted to CP. I pray not but let’s allow the time for the DEC to make educated decisions.
    Thank you
    Dr. William J. Roche

  6. $20 A FOOT? I was wondering what they were offering?
    That,s a insult not a offer!
    What still seems strange to me is why not run it east directly to the targeted market? But we all know why dont we?
    Cherry picked route of leaste resistence!
    Kudos to Sidney on the lp deal!
    I wonder how much landmen make per foot?
    Shame on those of you who support E D.
    Only fools help destroy their comunities to line the Swiss bank acounts of Wall street theivs!
    ALL NY OR NONE!!!!!

  7. As long as Cuomo has plenty of hydro fracked natural gas pumped into New York City and Albany, the New York State Landowners can eat cake. Thankfully, Cuomo could never get elected dog catcher out side of New York City.

  8. Kernan, Rorick, and Roche above are classic NIMBYs. they live in a fantasy world in which NY state is entirely a pristine wilderness and their personal energy consumption is immaculate and does not count.

    they also are incensed by potential govt action that they feel unfairly compensates them. well get in line. whining hypocrites like you guys are directly responsible for the destruction of BILLIONS of $$ in minerals value across the Southern Tier. compensation? zero dollars.

    the assertion that this pipeline will do irreparable harm is just a big fat lie. anti fossil fuel nut jobs run amok. there are some 2.6 million miles of gas/oil pipelines in the US already. millions of our neighbors in New England must heat their homes and businesses and generate electricity- this would ease their burden. or they can just keep shipping expensive LNG into Boston from Trinidad…

    one corrupt deluded megalomaniac wreaked all this havoc. just the other day he announced that NY is now the “progressive capital of the world”. the day our so-called governor is forcibly removed from office to join Silver and Skelos in disgrace cannot come soon enough.

  9. 2.6 million miles of pipe route aint enough? That,s a lot of pipe rite of way!
    At leaste we all agree on one thing, Cuomo !
    As for the Constitution pipe, you landowners in Pa. would be better served letting that gas stay in the ground until the prices stabilize!

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